This is a blog about the use of emerging technologies to boost the governance of public procurement. It used to be a blog on EU law, with a focus on free movement, public procurement and competition law issues (thus the long archive of entries about those topics). I use it to publish my thoughts and to test some ideas. All comments are personal and in no way bind any of the institutions to which I am affiliated and, particularly, the University of Bristol Law School. I hope to spur discussion and look forward to your feedback and participation.

Indeed, the oversight and monitoring obligations that Member States need to discharge were limited to the requirements of Art 83 Dir 2014/24 whereby, in order to effectively ensure correct and efficient implementation, they need to guarantee that the tasks set out in that article are performed by one or more authorities, bodies or structures. Those tasks include: i) recurrent monitoring obligations, ii) public disclosure of the results of such monitoring [art 83(2) dir 2014/24], and iii) period reporting to the European Commission by 18 April 2017 and every three years thereafter [art 83(3) dir 2014/24]. The Commission will then use such country reports to update its implementation reports (see here).

Moreover, Member States shall ensure that information and guidance on the interpretation and application of EU public procurement law is available free of charge to assist contracting authorities and economic operators, in particular SMEs, in correctly applying the Union public procurement rules; and that support is available to contracting authorities with regard to planning and carrying out procurement procedures [art 83(4) dir 2014/24]. Member States shall also designate a point of reference for cooperation with the Commission as regards the application of public procurement legislation [art 83(5) dir 2014/24]. In England, this is fundamentally done by the Crown Commercial Service (CCS).

In order to enable the Member State to discharge such obligations, Dir 2014/24 imposes documentary obligations that trickle down to contracting authorities and that the PCR2015 replicate. Additionally to the obligations on retention of contractual documents [reg.83 PCR2015], reg.84 creates reporting obligations for contracting authorities.

Under reg.84(1) PCR2015, contracting authorities need to draw up a written individual report for every contract or framework agreement covered by Part 2 PCR2015, and every time a dynamic purchasing system is established [for a practical guide to the content of such report's, see Bevan Brittan's byte size procurement update 19 here]. Such a report is however not required in respect of contracts based on framework agreements where these are concluded in accordance with regulation 33(7) or (8)(a) PCR2015 [reg.84(2)]. The report needs to have specific contents depending on the type of contract awarded [reg.84(1)], but contracting authorities can avoid repetition and refer to the contract award notice to the extent that such notice contains the required information [reg.84(3)]. These reports need to be made available to the European Commission upon request [reg.84(4)], as well as to the to the Cabinet Office or to such other body as the Cabinet Office may direct in connection with any functions which that body exercises for the purposes of Article 83 of Dir 2014/24 [reg.84(5) and see above].

Moreover, reg.84(6) PCR2015 imposes additional reporting obligations to the Cabinet Office, for the purpose of enabling the Cabinet Office to provide the Commission with information. Hence, beyond the contents of the report as per reg.84(1) PCR2015, contracting authorities need to be able to provide "such other information as the Cabinet Office may from time to time request" [reg.84(6)], which potentially creates a heavier reporting burden than that strictly derived from the rules in Dir 2014/24.

In that regard, though, it is important to stress that reg.84(7) to (9) PCR2015 transpose the general documentary requirements foreseen in Art 84(2) Dir 2014/24, whereby contracting authorities shall document the progress of all procurement
procedures, whether or not those are conducted by electronic means. To
that end, they shall ensure that they keep sufficient documentation to
justify decisions taken in all stages of the procurement procedure, such
as documentation on communications with economic operators and internal
deliberations, preparation of the procurement documents, dialogue or
negotiation if any, selection and award of the contract. The
documentation shall be kept for a period of at least three years from
the date of award of the contract. Consequently, diligent contracting authorities should not have difficulties in providing detailed reports on any matters arising from a well-documented procurement procedure.It may be worth stressing that contracting authorities will need to protect confidential information as per reg.21 PCR2015, which will probably solely require them to make sure that the Cabinet Office, any other other body as the Cabinet Office may direct in connection with any
functions which that body exercises for the purposes of Article 83 of
Dir 2014/24 [and the European Commission] have procedures in place to guarantee the confidentiality of the sensitive parts of the reports.